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Wednesday, January 16, 2013

Ind. Law - "Today it just doesn't make sense" to continue to ban switchblade knives

Dan Carden of the NWI Times reports:

If the musical "West Side Story" makes a comeback, with its singing and dancing street gang members wielding switchblade knives, Indiana may be ready.

A Senate committee Tuesday voted 9-0 for Senate Bill 181, legalizing the sale and possession of spring-loaded knives, also known as switchblades.

"Maybe back in the '50s there was a feel-good reason to ban them, but today it just doesn't make sense," said state Sen. Jim Tomes, R-Wadesville, sponsor of the proposal.

Tomes said his legislation will help Hoosiers with arthritis and others, such as paramedics, who'd benefit from being able to quickly open a knife by pressing a button.

See also this story by Richard Grant in Mother Jones.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Law

Courts - "‘Judicial Arbitration’ Is Unconstitutional, Say Newspapers"

Jacob Gershman's post last evening in the WSJ LawBlog began:

Should the nation’s premier forum for corporate litigation have the right to arbitrate business disputes in secret?

Some of the nation’s largest news outlets — taking sides against the Delaware Court of Chancery judges and the pro-business U.S. Chamber of Commerce — don’t think so.

The Wall Street Journal, the New York Times and other major news organizations are urging a federal appeals court to declare unconstitutional a Delaware law granting the state’s influential Court of Chancery the power to arbitrate business disputes in secret. It’s the latest development in a high-stakes constitutional case whose outcome could change the way corporate America settles business disagreements.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Courts in general

Law - New York Legislature Restricts Access to Gun Permit Data"

Recall this ILB entry from Dec. 26th, headed "A suburban New York newspaper is under fire from conservatives and gun rights advocates after publishing the names and addresses - and a locator map of people who possess pistol permits in several suburban counties." The ILB entry pointed out that when several Indiana newspaper in 2010 published some information about gun permits in their circulation areas, but did not include names and addresses, only general information about gun permits by race, gender, age and ZIP Code, the General Assembly responded by passing a law closing off from public access records of permits to carry handguns.

A similar thing has now happened in New York. From a story today in the NY Times, reported by Christine Haughney:

New York State’s new gun law seeks to restrict ownership of certain weapons. But it also restricts something else: access to previously public information about gun permits.

The new law, passed on Tuesday, requires that, for the next 120 days, no information about gun permit holders in a new statewide gun registration database is made available publicly, according to Robert Freeman, the executive director of the State Committee on Open Government. After that, gun permit holders will have the right to have their names and addresses removed from the database by contacting their local county clerks or police departments.

Legislators rushed to include this protection in its gun regulation proposal after the suburban newspaper The Journal News published on Dec. 23 the names and addresses of gun permit holders in Westchester and Rockland Counties, and put online a map showing the locations of the gun permit holders.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to General Law Related

Courts - "It May Float, but a Home Isn’t a Boat, Justices Rule." and some ILB observations

That is the heading to an Adam Liptak column in today's NY Times. A few quotes [ILB emphasis]:

WASHINGTON — A floating home is not a vessel to be regulated under federal admiralty law, the Supreme Court ruled on Tuesday in a colorful decision that featured photographs and the first dissenting opinion in an argued case since the term started in October.

The case was closely watched by businesses that operate floating structures like casinos, restaurants and hotels. Structures deemed to be vessels are subject to federal laws and regulations, including ones concerning safety, employment and taxes.

The case concerned what Justice Stephen G. Breyer, writing for the majority in the 7-to-2 decision, described as “a house-like plywood structure with French doors on three sides.” Inside were a bedroom, sitting room, closet and kitchen. A stairway led to an office on the second floor.

The home could not propel itself, but it was occasionally towed from one Florida marina to another, sometimes over long distances. In 2006, it was docked at a marina owned by the City of Riviera Beach, Fla. A dispute over dockage fees led to a lawsuit under federal admiralty law.

The owner of the structure, Fane Lozman, countered that the court had no jurisdiction because his home was not a vessel. A federal law defines vessels to include “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”

ILB: If this sounds somewhat familiar, it is because this or related questions have come up a number of times with Indiana casino boats.

More from Liptak's story today:

The correct inquiry, Justice Breyer went on, was whether “a reasonable observer” would conclude that the structure was “designed to a practical degree for ‘transportation on water.’ ” Mr. Lozman’s home, he said, did not qualify.

In announcing the ruling on Tuesday morning, Justice Breyer noted that the written decision included photographs of the home at issue and of a wharf boat of the sort that the court had ruled was not a vessel in a 1926 decision. “Even though a picture is worth a thousand words,” Justice Breyer said from the bench, “we have written a few words of explanation as well.”

Justice Sonia Sotomayor filed a dissent, which was joined by Justice Anthony M. Kennedy. She said the majority’s approach created a “novel and unnecessary” new standard for deciding what is a vessel. “By importing windows, doors, room style and other aesthetic criteria" into the analysis, she wrote, “the majority gives our vessel test an ‘I know it when I see it’ flavor.” She cited a 1964 concurrence from Justice Potter Stewart in which he made that observation about “hard-core pornography.”

The majority’s standard was not only “opaque and unpredictable” but also “completely malleable,” Justice Sotomayor wrote. She said she could not say why Mr. Lozman had won.

“It is unclear,” she wrote, “why Lozman’s craft is a floating home, why all floating homes are not vessels, or why Lozman’s craft is not a vessel.”

The better course, she said, would have been to return the case to the lower courts for a fuller determination of the facts concerning the structure.

Instead, Justice Sotomayor wrote, “the majority works real damage to what has long been a settled area of maritime law,” bringing uncertainty to businesses that “rely heavily on clear and predictable legal rules.”

ILB: Of course, I went straight to the opinion to see the pictures. But I was disappointed! SCOTUSblog is apparently now linking to their sponsor, Bloomburg Law's version of SCOTUS opinion. I looked in vain for the pictures! Instead, at the end of the majority opinion are these "Editor's Notes":
APPENDIX

[Editor's Note: This graphic is non-transferable.]

Petitioner's floating home. App. 69.

[Editor's Note: This graphic is non-transferable.]

50- by 200-foot wharf boat in Evansville, Indiana, on Nov. 13, 1918. H. R. Doc. No. 1521, 65th Cong., 3d Sess., Illustration No. 13 (1918).

Fortunately I was able to easily find the link to the Supreme Court's version of the opinion, which is familiarly formatted AND contains the two pictures, on pp. 16 and 17, the second photo being of the Evansville wharf boat from 1918.

Finally, here is SCOTUSblog's Lyle Denniston's analysis of the opinion. A few quotes:

Courts, of course, will be deciding what the “reasonable observer” would see, presumably on a case-by-case basis.

Under this test, not all houseboats will be exempt from maritime regulation, since many of them have motors to propel them, so a reasonable view of them is likely to be that they can be moved over water, carrying goods and people. But neither will all dockside structures used as homes, and ill-fitted for gliding over the waves, come under the new definition, because they probably will not be seen as transport vessels. It may take some time, and quite a bit of litigation, to see the difference between them, and between other floating structures. * * *

Justice Sonia Sotomayor dissented, in an opinion joined by Justice Anthony M. Kennedy. They described the “reasonable observer” test fashioned by the Breyer opinion as based upon notions that have “never appeared in any of our cases.” The majority’s application of it here, the dissenters said, “effectively (and erroneously) introduces a subjective component into the vessel-status inquiry,” even while acting as it was creating an “objective” test. The majority, Justice Sotomayor wrote, “works real damage to what has long been a settled area of maritime law….Numerous maritime industries rely heavily on clear and predictable legal rules for determining which ships are vessels.” That will now be frustrated, the dissenting opinion said, by the majority’s “distorted application of our settled law.”

The dissenters also argued that the Court should have returned the case to lower courts to more extensively examine Lozman’s houseboat — an inquiry that, of course, would have had to be based on what was already known about it, since it no longer exists.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Courts in general

Ind. Decisions - More on: Supreme Court issues five disciplinary rulings

Updating this ILB entry from Jan. 14th, Rebecca S. Green of the Fort Wayne Journal Gazette reports on one of the recent disciplinary actions taken by the Supreme Court, In the Matter of Jon A. Criss.

The story begins:

The Indiana Supreme Court suspended the law license of a Noble County lawyer convicted of possession of methamphetamine.

Last summer, Jon A. Criss, 44, was arrested after going to great lengths to hide from authorities, even submitting his own obituary to a local newspaper to fake his own death.

According to court documents, he was arrested at his own home in the 8800 block of North County Road 550 East in Kendallville after deputies responded to reports he was having a possible heart attack.

Inside the house, a deputy found a white powder substance in a coffee filter in a jewelry case sitting on a bedside table. The substance tested positive for methamphetamine. Marijuana was also found inside the master bedroom, as was a wooden box containing a package of synthetic marijuana.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In Nick Domaschko and Edwina Domaschko, and their Respective Trusts, et al. v. State of Indiana, an 8-paage opinion, Judges Barnes writes:

The Domaschkos own approximately 900 acres of land in Ohio County between State Road 56 and the Ohio River. On May 16, 2011, INDOT filed a complaint for the appropriation of real estate in connection with a project to improve State Road 56. In addition to temporary rights of way, INDOT sought fee simple ownership of certain portions of the Domaschkos’ property. The Domaschkos objected, asserting that some of the real estate INDOT was seeking to appropriate was not related to highway purposes. INDOT filed a motion to overrule the Domaschkos’ objections. Eventually, the trial court conducted an evidentiary hearing on the Domaschkos’ objections. On May 30, 2012, the trial court issued an order of immediate appropriation and appointment of appraisers. * * *

Because the buffer zone and driveway are related to the improvement of State Road 56, INDOT was statutorily authorized to acquire that property. We affirm.

NFP civil opinions today (1):

Douglas Moyer & Irk v. David M. Dugger and Diana Dugger (NFP)

NFP criminal opinions today (2):

Pablo Garcia-Gomez v. State of Indiana (NFP)

Christopher Hudson v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana Supreme Court, Division of State Court Administration looking for staff attorney

The Indiana Supreme Court, Division of State Court Administration, is seeking applicants for a staff attorney position to manage programs to improve delivery of court services in family law areas. Experience in juvenile, CHINS and family law litigation is a must, although this will be non-litigation position. More here.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Courts

Ind. Courts - Any four-fers or even three-fers in Indiana? [Updated]

Remember this post headline from Dec. 26th: "Ind. Courts - Who will replace Magistrate Graham who replaced Judge Rush who replaced Justice Sullivan on the Supreme Court?" But this was not really a three-fer for Governor Daniels, as he did not select Judge Graham's new magistrate.

This came to mind this morning when I read this post from the State Bar of Michigan Blog, headed "Michigan Supreme Court Vacancy: Has The Game of Dominoes Changed?" that begins:

In the world of filling judicial vacancies, the top play in Michigan has been a four-fer: a Court of Appeals judge appointed to fill a Supreme Court vacancy; a circuit or probate judge appointed to fill that newly-created Court of Appeals vacancy; a district court judge appointed to fill the circuit or probate vacancy; and a brand new judge minted to fill the district court vacancy. Former Gov. John Engler was known for his mastery of this form of dominoes. (Example of a notable three-fer: appointment of Stephen Markman to fill the seat of retiring Justice Jim Brickley; appointment of Donald Owens to fill the Court of Appeals seat thus vacated by Markman; appointment of Richard Garcia to the Ingham Probate Court seat vacated by Owens. Hat tip to the first reader who correctly identifies the appointees of a Michigan four-fer.)

But this MiLW Blog post suggests that the days of high-rolling appointment dominoes may be over.

Can anyone remember any gubernatorial four-fers or even three-fers in Indiana judicial history?

[Update at 11:08 am]
Prof. Joel Schumm writes:
It would have to be someone elevated to the Supreme Court from the Court of Appeals, which in the merit selection era has been only Rucker. I believe he was replaced by Vaidik, and I assume O'Bannon then appointed her trial court replacement.

What I found most interesting in that post was the planned reduction from 28 to 24 judges.
ILB: Indeed. The long SBMBlog entry continues:
But this MiLW Blog post suggests that the days of high-rolling appointment dominoes may be over. Public Act 40 of 2012 (MCL 600. 303a) reduced the number of Court of Appeals seats from 28 to 24, with the reductions to be triggered by attrition ...
Read it in full here.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Courts

Ind. Gov't. - More on: State Board of Accounts raises questions in LaGrange County audit report

Updating this Jan. 9th ILB entry, a special prosecutor has now been named.

It is currently quite difficult to learn news from LaGrange County. Here is the beginning of a story by Matt Getts from KPCNews.com, "serving the NE Indiana Community" - the rest requires a subscription. The snippet:

LAGRANGE — A special prosecutor will look into a State Board of Accounts 2010 audit involving the LaGrange County Commissioners and the county’s attorney.

LaGrange County Prosecuting Attorney Jeff Wible asked for a special prosecutor be named. Superior Court Judge George Brown signed an order Tuesday morning naming former Vandenburgh County Prosecuting Attorney Stan Levco of Evansville to the case....

This story by Tim Murray appeared briefly on the WTHD 105.5 website, which provides a rolling summary of the news:
LAGRANGE – Another special prosecutor will review a state audit that accused LaGrange County Commissioners of misfeasance in their handling of a land transaction.

LaGrange Superior Court George Brown appointed former Vanderburgh County Prosecutor Stan Levco of Evansville to conduct a review of the report and determine if any criminal laws were broken.

With Evansville being as far away from LaGrange County as you can get in Indiana, LaGrange County Prosecutor Jeff Wible says Levco will have no connections to him or anyone else in the county.

The State Board of Accounts audit for 2010 accused the commissioners of failing to get county council approval of transactions involving the Lambright Trust property. County Attorney Kurt Bachman was trustee of the trust, and the audit claims Bachman's conflict of interest disclosure in the matter was deficient.

The county responded with a team of attorneys from Fort Wayne and Indianapolis saying the transactions were between the trust and Bachman, not the county, and so the laws cited by the Board of Accounts did not apply.

Former Steuben County Prosecutor Tom Wilson was appointed as a special prosecutor in 2011 to review the Lambright transaction. Wilson filed a report with LaGrange Circuit Court saying his investigation determined there was no criminal activity in the matter.

Wible sought a second review because the audit report contained additional information not available in 2011.

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Government

Ind. Law - "IU McKinney professor recognized for work in courtrooms and classrooms"

Frequent ILB contributor, Indiana University Robert H. McKinney School of Law Professor and 2013 recipient of the W. George Pinnell faculty award, Joel Schumm, is featured today in a story by Marilyn Odendahl in the newest issue of The Indiana Lawyer. The headline, "IU McKinney professor recognized for work in courtrooms and classrooms."

Posted by Marcia Oddi on Wednesday, January 16, 2013
Posted to Indiana Law